



I) 


Vote “No (X)” 

ON THE PROPOSAL (NO. 10) 

“Amendment to Article Seven (7) of the 
Constitution Providing for the Recall 
of Public Officials”; to be Sub¬ 
mitted at the Next Gen¬ 
eral Election. 


First Prize Arguments 

By Students of Minnesota Law Schools and High Schools 

Against 

RECALL 0 /JUDGES 

h 

HARVEY S. HOSHOUR of Duluth, Minnesota 
i| 

and 

ARTHUR O. LEE of Madison, Minnesota 


(NOTE. In the November elections, since these arguments were published, the pro¬ 
posed Amendment was rejected; lacking about 400(30 votes of the number necessary 
for its adoption.) 


J 

1 


i r=@Q=i [ 






























NOTE 

During the past three yefA‘s the American Bar Association 
through its Committee to Oppose Judicial Kecall, of which 
the undersigned has been Chairman for over two years, has 
been working to bring home to the electorate of this State 
and of the entire Nation, the true significance of the Judicial 
Recall. The Recall, as applied to judges or to judicial deci¬ 
sions, is a proposition repugnant to our constitutional form 
of government. It is destructive of the judicial function. Its 
effect is to eliminate constitutional safeguards. It is in essence 
a Socialistic measure. It is anti-Republican. It is anti-Demo- 
cratic. It is non-progressive. 

The undersigned offered, last Spring, prizes to the high schoo] 
and law school students of Minnesota for the best argument 
against the Recall Amendment (No. 10) which is to be voted 
on by the people of Minnesota in the coming November elec¬ 
tions, This proposed amendment includes the recall of judges. 
The enclosed are the arguments prepared by Mr. Harvey S. 
Hoshour of Duluth, who won the first ])rize among the Law 
school contestants, and by Mr. Ai'thur O. Lee of Madison, who 
won the first prize among the high school contestants. 

I can submit no better reasons than are here presented, for 
the rejection of the proposed recall amendment. These argu¬ 
ments not only present views with which I am in accord, but 
they show the conclusions of intelligent people who have stud¬ 
ied the matter and who have come to those conclusions through 
intelligent consideration of the subject. 

I commend these discussions to the earnest attention of the 
voters of Minnesota. 

Respectfully submitted, 

Rome G. Brown. 

Minneapolis, Minnesota, October 2-1, 1914. 


0 , Of D. 

riAR 31 19 9 





ARGUMENT BY HARVEY S. HOSHOUR 


Of the Law School of University of Minnesota 
Duluth, Minnesota 


SUMMARY 

I. Introduction. 

a. In Minnesota, popular governnient is securely established 

due in a great measure to the prevalent spirit of public 
discussion on current topics. 

b. The argument will be confined to the recall of judges 

alone, since they have different duties from adminis¬ 
trative officers, and the same arguments do not apply 
to both. 

c. Under the proposed amendment, since judicial and ad¬ 

ministrative officers are grouped together, the man 
who is opposed to the recall of judges must vote “no’’ 
on the whole amendment. 

II. The Issues. 

a. Is the recall of judges in line with our past policy? (HI) 

b. If not so in line, is such a change desirable? 

(1) Is the recall fair*to the judges? (V) 

(2) What result will tlie recall have on the effective¬ 
ness of the law? (VI) 

(3) What will the effect be on the public and its rights? 
(VII) 

(4) AVill the recall remedy existing defects? (VIII) 

(5) Has it worked well where it has been tried? (IX) 
((>) AA^iat are the opinions of careful observers on the 

cpiestion? (X) 

III. Past Policy. 

a. The recall is not in line with our past policy, as a state 
or nation, in that it makes the courts dependent on 
the will of the people. 

IV. The Burden of Proof. 

a. The burden of proof is upon those who propose such a 
change in our governmental policy— 

(1) In that the test of our national and state experi¬ 
ence supports the older form; 


(2) In that the recall of judges is out of harmony with 
the Constitution. 

V. The Recall ts Unfair to the Judges. 

a. In that the method of defense provided for is inadequate 

to give the judge a fair trial; 

b. In that those who accuse the judge are also among those 

who decide concerning his guilt. 

VI. The Recall will Minimize the Effect of the Law. 

a. In that there will be a different rule in like cases; 

b. In that more litigation will result. 

VII. The Recall will have a Ma[.effect on the Public 
AND ITS Rights. 

a. In that the rights of the weaker party will be infringed; 

b. In that the rights to life, liberty, property, and other 

constitutional guaranties will be jeopardized. 

VIII. The Recall will not Remedy Existing Defects. 

a. In that the same people who elect a corrupt judge will 

vote at his recall, and also for his successor; 

b. The remedy of impeachment, properly regulated, is more 

effective than the recall in removing corrupt judges. 

c. The recall Avill not remedy the delay and technicality in 

our law. 

IX. The Recall has been a Failure in Practice. 

a. It has failed in foreign countries in the past. 

b. It was part of the Articles of Confederation, and was 

purposely omitted from the Constitution, 
e. It has been a failure in the western states which have 
recently adopted it— 

(1) In that it has introduced bad practices in solicit¬ 
ing names for the petition; 

(2) In that it has failed to interest a representative 
proportion of the people. 

(3) In that it has introduced party politics into the 
judiciary. 

X. Opinions. 

a. The opinion of representative men who have made a study 
of governmental duties, is opposed to the recall of 
judges. 


ARGUMENT 


We, Avlio live in Minnesota, believe in a government tliat 
places the ])ower in the people; and Ave believe that this poAver 
should be just as close to the people, in every case, as is practi¬ 
cable and expedient. It is not by chance that Minnesota laAvs 
are among the most progressive in America; it is not by chance 
that such measures as the election of senators by popular vote, 
Avoinan suffrage, and the initiative and referendum have made 
great forAvard movements here ; nor is it by chance that Minne¬ 
sota is the first state, having any of its territory east of the 
Mississippi, to vote on the recall of public officials. 

That popular government is so securely established in Minne¬ 
sota, is due—if to one thing more than another—to the preva 
fence thi'oughont the state of discussion concerning questions 
of public interest. In the hope of helping in some measure 
in the discussion of the recall, noAV at issue, this article is 
written. 

The Asriter's position on the recall is summarily stated by 
President Wilson: 

“Tlie recall is a means of administrative control. If 
properly regulated and devised, it is a means of restoring 
to adndnistrative officials, AAffiat the initiative and referen¬ 
dum restore to legislators, namely, a sense of direct re¬ 
sponsibility to the people Avho chose them. The recall of 
judges is another matter, eludges are not laAv-makers. 
They are not administrators. Their duty is not to deter¬ 
mine Avhat the laAv shall be, but to determine Avhat the 
laAv is. Their independence, their sense of dignity and 
of freedom is of first consequence to the stability of the 
state. To apply to them the principle of the recall is to 
set up the idea that the determinations of Avhat the laAV 
is must respond to popular impulse and to popular judg¬ 
ment. It is sufficient that the ])eople should have the 
poA^ er to change the laAV Avhen they Avill. It is not neces¬ 
sary that they should directly influence by threat of recall 
those Avho merely interpret the laAV already established.’’ 

The argument, therefore, Avill be confined to the recall of 
judges, all of Avhom are included in the provisions of the pro 
posed amendment. It is unfortunate that administrative and 
judicial officers are included together ; but, if the people of 
Minnesota Asmnt a recall of legislath^e and executive officers. 


4 


such a measure can be proposed and voted on at another time. 
As the question will be presented at this election, every one 
who is opposed to the recall of judges, to make his vote effective, 
must vote ‘^no” on the proposed amendment. 

The question naturally resolves itself into two main issues. 
The first of these is: Is the recall in line with our past policy? 
The second: If it is not so in line, is such a change desirable? 
The second of these issues is the more important to the be¬ 
liever in popular government, though the first is by no means 
negligible in its effect on the decision of the thoughtful citi* 
zen. The second division of the question raises such compo¬ 
nent issues as: (1) Is the recall fair to the judges, in view 
of their duties and position? (2) What effect will the recall 
have on the stability and effectiveness of the law? (3) What 
effect will it have on the public rights? (4) Will the recall 
of our judges remedy existing defects in our law and courts? 
(5) Has the proposed plan worked well in other places? (6) 
What is the opinion of fair-minded and able observers on the 
question? I shall consider the issues raised by these questions 
in the order given, stating them positively rather than in the 
interrogative form. 


THE RECALL OP JUDGES IS NOT IN LINE AVITH OUR PAST POLICY 

That the recall of judges is not in line with our past policy 
as a state and nation seems self-evident. Since the Consti¬ 
tution was adopted, it has been our policy to keep the judiciary 
independent of every exteuial force, whether that force be pop¬ 
ular will or executive control. The chief argument brought 
forward by the advocates of the recall, is that it will make the 
courts responsive to the people’s wishes. That this is a decisive 
change in our past policy is indisputable, nor is the contrary 
argued by the proponents of the recall. 


THE BURDEN OP PROOP 

The issue then arises: Is such a change desirable? No 
thinking American will scoff at the wisdom of the men who 
formed our Constitution, that document characterized by Glad¬ 
stone as ^The most Avonderful work ever struck off at a given 
time by the brain and purpose of man;” but, on the other 
hand, he will not accept any theory or practice of government, 


5 


as applied to our conditions today, simply because our fatliei's 
thought it best. He Avill consider all the facts, weighing heav¬ 
ily the opinions of those who formed our Constitution, in that 
it has stood the test of years. The words of Abraham Lincoln 
are applicable here: 

‘T do not mean to say that we are bound to follow im* 
plicitly in whatever our fathers did. To do so would be 
to discard all the lights of current experience—-to reject 
all progress, all improvement. What I do say is chat if 
we would supplant the opinion and policy of our fathers 
in any case, we should do so upon evidence so conclusive 
and argument so clear, that even their great authority, 
fairly considered and weighed, cannot stand.’’ 

The burden of proof rests then upon those who propose the 
recall. 


THE RECALI. IS UNFAIR TO THE .TUDGES 

Fairness is a thing on which we as Americans pride our¬ 
selves. To consider any question from the stand-point of those 
most affected is essentially American, and, to the thinking 
man, it is fundamentally essential. 

The recall, as stated in the proposed amendment, does not 
give the judge a fair trial. In any important case the evidence 
and rulings of the court, upon which a recall could be based, 
will cover a number of volumes, and frequently intricate ques¬ 
tions of law and fact will be involved. How can the voter de¬ 
termine, from a 200 word charge and a 200 word defense, 
whether or not the issues in such a case were correctly decided, 
and make that determination fair to the judge? How can the 
voter decide fairly, whether or not the court rightly inter¬ 
preted the law, when the case may involve a hundred points 
and the authorities, on which the decision rests, may run back 
a hundred years? The question cannot be whether or not the 
law is wrong—over that the judge has no possible control— 
but only whether there was a correct interpretation of the 
existing law. Obviously it is unfair to take the newspaper 
reports of the case or what political speakers may say. A 
fair decision in the case of a recall of a judge, should involve 
a study of how learned and unprejudiced judges have inter¬ 
preted the same or similar laws in the past, in this and other 
jurisdictions. How can all this be included in 200 words, so 
as to be fair to the judges? 


6 


Again, the judge is not treated fairly, in that his accusers 
form part of the jury. In our actions at law we exclude all 
those as jurors, who have even a remote interest in the litiga¬ 
tion; but, under the proposed system, the judge is to be tried 
by a jury, 20% of whom have gone on record as being opposed 
to him, by signing the recall petition, and that too, without 
having heard the judge’s side of the question. Is this fair to 
the judge? Are not our judges—even when they are on trial— 
1o be given as fair a chance as the criminals who come before 
Them? 


THE IlECALL WILL MINIjMIZE THE EFFECT OF THE LAW 

It is axiomatic that the civilization of a nation increases 
in direct proportion as the people of that nation have effective 
Jaws. A government without such laws is but a form of anar¬ 
chy. It is not the duty of the court to make the laws, but only 
to interpret and declare them, and to make that declaration 
uniform in like cases, thus giving the laws stability and effec¬ 
tiveness. It requires no evidence to prove that a law applied 
differently in every case will have no stability nor efficiency; 
indeed it Avill not be a law at all. If the judge is subject to 
a recall, he cannot lielp but thinlc more of what the people 
will thinlv of his decision, than of tlie efficiency of the law. This 
will tend to bring about a different rule in every case; litiga¬ 
tion will be increased, in that many suits Avill be started, Avhich, 
if the laAV Avere settled, Avoiild never have been brought. The 
JaAV Avill tend to become unstable, unsettled and ineffective. 


THE RECALL. AVILL HAAT^ A MALEFFECT ON THE PUBLIC AND THE 
RIGHTS OF THE PEOPLE 

Edmund Burke said : 

‘^The poorest being that craAvls on earth contending to 
save itself from injustice and oppression is an object re¬ 
spectable in the eyes of God and man.” 

That, in essence, is the basis of ouE constitutional govern¬ 
ment. Here the rights of the poorest subject are above the 
])OAver of any force to alter. If the proponent of the recall of 
judges Avaiits an unanswerable reason Avhy the judiciary must 
be independent, if the rights of the people are to be preserved. 


let him think of the application of the above quotation to tlie 
plan he is advocating. 

If the courts are not wholly independent, who is to pro¬ 
tect the man who is contending for his rights against heavy 
odds? If an individual is suing, in a case where the supposed 
desires of the majority of the people are opposed to him, how 
can he get a fair trial ? This squarely raises the question: Can 
a man have any rights, which a majority of those who vote 
at a recall election, think he should not have? That, indeed, 
is the crux of the Avhole situation. The man who believes that 
there can be no such rights—and only he—can consistently 
vote for the recall of judges. 

Under our Constitution there are some things that no ma¬ 
jority, however great, can change. Such are the right to the 
Avrit of habeas corpus, the prohibition against the passing of 
ex post facto laws, the right to be secure in life, liberty and 
property, and many other rights known to every American. 
To make the question personal and concrete, are you Avilling 
that your property rights, your liberty, your life, should be 
at the will of the majority of those who vote at a special elec¬ 
tion? In every case, on which a recall could be based, some¬ 
one's rights—frequently someone’s 'life—are at issue. The 
courts alone can protect these rights. If you make them de¬ 
pendent on a popular majority, then the rights that our fathers 
fought to attain are lessened and potentially gone, as the ma¬ 
jority changes. 

The words of Senator Koot are applicable lu‘re. The recall 
of judges, he says, 

^^abandons absolutely the conception of a justice that is 
above majorities, of a right in the weak Avhich the strong 
are bound to respect. It denies the vital truth taught by 
religion, and realized in the hard experience of mankind, 
and which has inspired every constitution America has 
produced, and every great declaration for human freedom 
since Magna Charta,—the truth that human nature needs 
to distrust its own impulses and passions, and to establish 
for its OAvn control the restraining and guiding influences 
of declared principles of action.” 


THE RECALL AVILT. NOT REMBDV EXISTING DEFECTS 

In Minnesota there is little charge of corruption in the 
courts; our Supreme Court is said to be the most progressive 
state tribunal in America ; the judges of our lesser courts are 


8 


iiien of eminence and dignity in every comm unity. This raises 
the question: Why a recall with its incident dangers? But, 
granting that there is corruption in our courts, such corrup¬ 
tion will not be remedied by the proposed system. 

In the first place, if the people elect a corrupt and inefficient 
judge, the same people will vote at the recall, and again when 
a successor is elected. If the people are incapable of electing 
a fair judge, it is unreasonable to think that the same people 
will be able to vote rationally at a recall election, where the 
issues are sure to be much more involved. The same methods 
will apply in each election; the same parties will control and 
the same bosses, who put the corrupt judge in office, will re¬ 
place him with another quite as corrupt and even more cring¬ 
ing to the will of his masters. 

If the judge becomes corrupt after his election, no recall 
is needed, for we already have the remedy of impeachment. 
If impeachment is not workable now, its plan and form can 
and should be changed, so as to make it more easy of applica¬ 
tion. The difference between the recall and impeachment is, 
that in the latter case the judge is tried in accordance with 
the rules of evidence, and by those who have an opportunity 
fully to investigate the charges; whereas in the recall, the judge 
is tried by those, who in the nature of the case cannot have 
had a chance to learn all the facts, and by a group, 20% of 
whom are avowedly his opponents. In impeachment, the judge 
is given the sort of a trial that a criminal gets under our law, 
no more, no less. Regardless of fairness to the judges, which 
is the more effective to remove the really corrupt and inefficient 
judge? 

Nor would the recall remedy the delay and technicality 
that exist in our law to-day. No particular judge is or can be 
responsible for these things, and the recall of any judge for 
such reasons, will not change them one whit. If there is too 
much delay, our procedure should be changed; if there is too 
much technicality, less technical laws should be made, not by 
the judges—who have no such power—but by the legislature. 


THE RECALI. HAS FAILED WHERE IT HAS BEEN TRIED 

The idea of a recall of judges is no new thing. The judges 
of Babylon, four thousand years ago, were subject to a recall by 
the king; in ancient Greece, the people had the power of re¬ 
call ; in England, prior to Ihe Act of Settlement, the king 


9 


had such a power; in Prance, during the Revolution there, 
such power was in the people. Every student of history knows 
the result in these cases. Babylon is of interest only to show 
what government should not be; the pure democracy of ancient 
Greece caused its downfall; the system in England produced 
a Jeffreys, made possible the Bloody Assizes and cost a king his 
crown; and in Prance the Reign of Terror was the result. 

In America, the recall w^as part of the Articles of Confedera¬ 
tion, and on the failure of the govemment under those articles, 
the recall wms omitted from the new plan of government, though 
not without some opposition. 

Since 1908, Oregon, California, Arizona, Colorado and Neva¬ 
da, have adopted the judicial recall. Three things are signifi¬ 
cant in a study of the recall in these states: 

(1) It has introduced bad practices in procuring names 

for the recall petitions. 

(2) The recall elections have failed to interest a repre¬ 

sentative portion of the people. 

(3) It has introduced party politics into the (piestion. 

I shall consider these three points briefly. 

(1) Allen II. Eaton, in his book, ^^The Oregon System,” 
says that the attempted recall of Judge Coke, in Oregon, failed 
because of the lack of funds to procure enough signatures 
to the petition. Pred W. Catlett, in the Annals of the American 
Academy, says: 

^^As it actually worked, petitions are placed in the hands 
of many irresponsible persons, w^ho indiscriminately solicit 
signatures on the streets and in the office buildings, ignor¬ 
ant in the great majority of cases, not only of the voting 
qualifications of the signer, but also of the genuineness of 
the name and signature.” 

(2) When Judge Weller was recalled in California, a case 
where the enthusiasm was at white heat, the total vote wms less 
than 50% of the qualified list of voters, and he w^as recalled 
by a vote of less than one-fourth of the qualified voters. This 
means one of two things; the voters were not interested in the 
question, or they failed to vote because they found it impossible 
to make a rational decision. 

(3) Mr. Gilbertson, a secretary of the New York Short Bal¬ 
lot League, says, in the Annals of the American Academy, 
that politics have been the leading issue in every case of the 
recall that has been tried. 


10 


AN INSTRUMENT OF SOCIALISM 

The Socialist party has already incorporated the recall of 
judges into their national platform. In the words of Mr, 
Debs’ paper, ‘‘The Appeal to Keason,” it is “the means whereby 
the people will be enabled to inaugurate Socialism.” The 
same publication, before the notorious McNamara trial, said, 
“Under the provisions of the recall amendment, the 
judges of the Supreme Court of California can be retired. 
These are men who will decide the fate of the kidnapped 
workers. Don’t you see what it means, comrades, to have 
in the hands of an intelligent, militant, working class, 
the political power to recall the present capitalist judges, 
and put on the bench our own men? AVas there ever such 
an opportunity for effective work? No; not since Social¬ 
ism first raised its crimson banner on the sliores of Mor¬ 
gan’s country.” 

A news item, taken from the “Duluth Labor AA'orld” of Au¬ 
gust 8th last, illustrates the same point: 

“The Socialists’ local here has called to its aid the entire 
Socialist party of the state and nation. The first to re¬ 
spond is the Appeal to Reason, with its over one-half mil¬ 
lion circulation, pledging itself without reserve, to con¬ 
tinue in the recall fight, until Judge MoHendrie is swept 
from the bench and Bob Uhlich freed from jail. A special 
representative of the Appeal is now in Trinidad.” 

That these things should arise was inevitable; that they have 
come up is but proof of the correctness of my thesis. Are we, 
in Minnesota, willing that such methods of soliciting be intro¬ 
duced? Are we willing that our judges should be recalled by 
one-fourth of the voters? Are we willing to have the Socialists, 
or any other political party, make the recall of our judges a 
national issue? Are we Avilling that political papers in other 
states, should pledge themselves to sweep our judges from the 
bench? If the experience of other states it to be taken as a 
criterion, the man who casts his vote in favor of this measure, 
must answer each of these questions in the affirmative. 


11 


THE OPINIONS OF COMPETENT OBSERVEIIS ARE OPPOSED TO THE 
RECALL OF JUDGES 

Opinions on such a question are only of value, Avlieii those 
who give them have had experience in governmental matters. 
So far as I have been able to tind, no man of national promi 
nence has come out squarely in favor of the recall of judges. 
I have already referred to the opinion of Woodrow Wilson, the 
great leader of the majority party, as well as to Senator Root 
the leading figure of the minority party. Mr. Borah, the 
famous progressive Senator from Idaho, says: ^‘It is my delib¬ 
erate and uncompromising opinion that without a free, untram- 
nieled, independent judiciary, popular government, the gov¬ 
ernment of the people, by the people, and for the people, would 
be a delusion, a taunting, tormenting delusion.’^ 

Space will allow the quoting of but one other man, the 
venerable Archbishop Ireland of Minnesota: ^^No greater peril 
to the institutions of democracy, to the permanency of social 
order, could well be imagined, than the legalizing of the recall 
of the judiciary.^’ 


CONCI.USION 

The conclusion of the matter may be stated briefiy: (1) 
The recall of judges is a radical change in our past policy: (2) 
Such a change is not desirable; (a) Because it is unfair to the 
judges; (b) Because it Avill make our laws ineffective; (c) 
Because it will have a devastating effect on the rights of the 
people; (d) Because it cannot remedy any existing defects; 
(e) Because it has failed where it has been tried; (f) Because 
the opinion of capable and experienced observers is opposed 
to the recall of judges. 

Men of Minnesota before you cast your votes in favor of 
this measure, t/iin/c on these things. 


Harvey S. Hoshour. 


12 


ARGUMEOT BY ARTHUR O. LEE 

Of the Madison High School 
Madison, Minnesota 

A determined and widespread attack is being made upon the 
old and established order of things political. It is asserted 
that we have outgrown our constitution; that government is 
not sufficiently direct and responsive; that our courts are 
usurping legislative powers; that they are abusing their high 
offices in the interests of special privilege, and that justice is 
being delayed. 

The popular unrest that has arisen has received its propor¬ 
tions, not so much from the nature of the conditions calcu¬ 
lated to produce it as from the contagion produced among the 
impressionable populace by the Socialists and the so-called 
progressives, who, with their radical ideas of democracy, are 
traversing the states of our nation, fascinating and enchaining 
the imagination of the people with a hue and cry about ‘^pop¬ 
ular government.’’ The idea of ^‘direct govemment.” ^^popular 
control” and the rest of the catch phrases of the propaganda of 
so-called progressivism are alluring to the average everyday 
citizen who has neither the time, the inclination nor the capac¬ 
ity to make more than a superficial analysis of what it means 
and embodies. 

The recall epidemic has reached ^tinnesota, and a constitu¬ 
tional amendment is up for approval or rejection, as the voters 
of this state see fit, providing for the recall of all public offi¬ 
cials, elective and appointive. This includes judges. It is 
urged by the ^^progressives” who brought the proposal into 
prominence that we need more direct and responsive govern¬ 
ment, and that in view^ of the abuses in our judiciary the people 
should exercise a direct restraint upon the actions of the judges. 
Ill short, the underlying purpose is to control, by the arbitrary 
exercise of the popular will at recall elections, the acts and ten¬ 
ure of public officials, including the judiciary. 

Those who advocate the recall attempt to justify the adop¬ 
tion of such a proposal by citing cases of delayed justice, drawn 
out litigations and usurpation of legislative functions by the 
judiciary. 


REOALI. Nf) REMEDY 


As to delayed justice, long litigations and technical imper¬ 
fections in our judicial system, no one can consistently claim 
that the exercise of the recall would tend to ameliorate these 
conditions. In fact, it was not originally proposed in order 
to meet these difficulties. HoAvever, it is claimed that we 
need to exercise a. check upon judges who frequently usurp 
powers, not properly theirs, to declare laws unconstitutional. 
This, with the argument for a direct democracy, is advanced 
as a principal reason Avhy the state of Minnesota should incor¬ 
porate into its constitution the provision for the recall of pub¬ 
lic officials, including judges. 

It is claimed that the courts have overstepped their authority 
by assuming to declare laws unconstitutional. But what is 
the limit of the authority of a court in a case where a law 
is seen in fact to be void and unconstitutional? American 
courts, since the beginning, have claimed this duty as a proper 
function under our constitutional system. Professor Thayer 
of Harvard, in his constitutional discussions, proves that when 
the judiciary declares an act repugnant to the organic law it is 
acting in its proper sphere. In fact this function of the judi¬ 
ciary has become an essential feature of our governmental 
system. This, then, is not usurpation, much less does it con¬ 
stitute a gi*ound for adopting the recall. 

AVhen the exponents of the recall, in trying to justify their 
proposal, attempt to show that the judges in the good state of 
Minnesota are corrupt and inefficient, they miserably fail to 
present an argument. The judiciary of Minnesota has always 
presented and gives assurance of presenting to its citizens a 
class of the most honorable and patriotic-spirited men in the 
profession. Our (*.ourts thus far have been above reproach and 
the criticism directed against their honesty and integrity 
stands unsubstantiated. 


RETROGRESSm^ STEP” 

There is not one consistent reason why Minnesota should 
make the recall a part of the organic law of the state. It is 
not a constructive step. It is reactionary and retrogressive, a 
step back to the dark ages of government. 

Analyzed to its logical conclusion the adoption of the recall 
means that our representative form of government is to be 


14 


substituted by a direct or an unlimited democracy. Xo prop¬ 
osition could strike more directly at the heart of representative 
government. We are told that representative government, 
which is the one great political bequest from the growing devel¬ 
opment of the progressive nations of the world, has failed. 
We are urged in the name of ^‘progress’’ to adopt the instru¬ 
ments of socialism, including the recall, in order that our gov¬ 
ernment shall become more direct and responsive. But direct 
democi'acy is nothing new. It existed in cultured Athens and 
in civilized Rome. It prevailed in bloody France. The history 
of these nations is an instructive memory. In them direct 
government by the numerical majority failed. In them the 
ideal theory was shattered. And they had the initiative, the 
referendum and the recall democracy. 

Ostracism in Athens operated on the same principle as does 
the recall. There is no essential difference between the form 
of those old time governments that have failed and the form 
now proposed. Those who uphold the recall argue that times 
have changed, that conditions are different and that what ap¬ 
plied to those past nations could present no lesson to us. But, 
while we admit that great changes have crept over our civiliza¬ 
tion, we emphatically deny that fundamental principles and 
governmental axioms have materially changed. Human nature 
is the same to-day as it was in Greece and France. Conditions 
change, ingrained principles and human nature endure. 

DESTROYS OUR FORM OF GOVERNMENT 

Do men realize that by instituting a direct vote on the politi¬ 
cal and economic questions confronting the judiciary in our 
complex American life they are casting the established idea 
of representative government on the rubbish heap and taking 
from the same rubbish heap the discarded and cast-off prin¬ 
ciple of direct and unlimited democracy? Why should we 
disregard historical illustration when the political history of 
the world shows that where pure democracy has failed repre¬ 
sentative government has succeeded on its ruins? The men 
who framed our splendid constitution considered the different 
forms of government, including direct democracy, and decided 
in favor of representative government, which, under our con¬ 
stitutional system, has become the model of the world. 

Then why should we change our form of government? Are 
we justified in bequeathing to posterity a system of govern¬ 
ment inferior to that which we have inherited and hold in 


15 


sacred trust? When conditions do not and cannot warrant a 
radical change, have we the moral right to undo in a single 
stroke the finished product of 500 years of Anglo-Saxon devel¬ 
opment of the idea of representative government? 

Now, let us test the proposition of popular recall in the light 
of a few fundamental principles. There are certain inalienable 
rights which inhere in free government and which are recog¬ 
nized in all constitutions. Among these rights there is none 
more important than this—that no citizen shall be deprived 
of his liberty or property except by the judgment of the law 
and after a trial before an independent and impartial tribunal. 
This is the keystone of the arch. The majority of the legal 
voters cannot constitute itself such tribunal. If it does, there 
is no sure or stable protection for the rights of any individual 
or of any minority. 

ESTABLISHES A TYRANNY OF MAJORITIES 

Most common among the cJass of cases that come up before 
the law are those in which one of the parties is in fact, if not in 
name, the people themselves or the temporarily popular major¬ 
ity. It is generally contended in these cases that some funda¬ 
mental right of the individual or of the minority is being vio¬ 
lated. In such cases how is the independence of the tribunal 
which is dependent upon one of the conti'acting parties to be 
maintained? Take a common case. A popular majority, 
through the legislatures elected by it, enacts a statute requir¬ 
ing railroads to carry passengers for 2 cents a mile, or say, 2 
cents for 10 miles. In the test case that comes before the court 
the railroad claims that the act robs it of its property. The 
court after hearing and study of the facts, sustains this claim, 
being dissatisfied with the decision, the popular majority re¬ 
calls the judges who gave the decision and elects judges who 
will reverse the decision. AVhich is the determining power? 
Is it not the popular majority which has constituted itself the 
court in its own case? 

Let us examine the recall in the light of another fundamental 
principle. When the same poAver Avhich enacts a laAV also de¬ 
cides Avhether the particular case comes Avithin that laAv, Ave 
call it a despotism. There is no separation of poAvers and func¬ 
tions. On the other hand, in a free government one body makes 
the laAV, AAhile another body decides Avhether the particular 
case comes Avithin the laAv. Thus the citizen is protected, be¬ 
cause the legislative and judicial departments are kent sep- 


16 


arate. Now, if the popular majority not only makes the law, 
but also decides whether a given case falls within it, then the 
legislative and judicial powers are united. The government 
then ceases to he free. It is a despotism, the despotic tyranny 
of popular majorities. 


DESTROYS JUDICIAL FUNCTIONS AND PROMOTES SOCIALISM 

Not only is the judicial recall Avrong in principle, but its 
effect would be to destroy the independence of the judiciary 
and, in the last analysis, to destroy the functions of the judi¬ 
ciary itself. The real progressive tendency during the last 
half century has been to build up an independent, untram¬ 
meled judiciary, recognizing no master, catering to no party 
or faction and administering justice according to law. But 
the recall proposition is a direct blow at this progressive de¬ 
velopment of an independent judiciary. 

Basing their argument on the assumption that the judge is 
an agent or servant of the people, the opposition reach the con¬ 
clusion that the people have the priAulege of recalling their 
agent when he fails to satisfy the popular majority. The fal¬ 
lacy in the argument is in the assumption that the judge is 
an agent of the people. He is not an ‘^agent’’ in any sense of 
the word. The peculiar character of the judicial office makes it 
imperative that he exercise his functions impartially, recog¬ 
nizing no constituency whatever, except, as Marshall said, ‘ffiis 
conscience and his God.’^ To make the judge dependent upon 
the public in a case in which the public is a party is to make 
the judge dependent upon the will of one of the parties upon 
whose claim he is to pass judgment. No sane man would be 
willing to have judgment passed upon him under such circum¬ 
stances. It is precisely this state of affairs which it is the main 
object of the Socialists to bring about. They would have the 
majority pass statutes confiscating private property and, by 
the judicial recall, allow the same majority to coerce the courts 
into allowing such statutes to be enforced. They would elimi¬ 
nate private property by eliminating the present power of the 
courts to protect it. 


17 


IT DEBASES JUDICIAL STANDARDS 

The effect of the recall upon the personnel and character 
of the judiciary would he anything hut salutary. By the ver^^ 
nature of things the recall will, and necessarily must, lower the 
judicial standard. Claiming that the impeachment process 
is too cumbersome, those who advocate the recall urge that 
the people should he given the power to remove inefficient or 
corrupt judges and elect better judges. But the feasibility of 
this is questionable. What constitutes inefficiency or incom¬ 
petency? Can you expect a defeated litigant to judge judicial 
capacity fairly? Is it rational to attempt to determine the 
legal and constitutional correctness of a judgment by popular 
vote? Would it not be considered irrational to have the com¬ 
petency of a physician passed upon by popular vote? The elec¬ 
torate, especially in a case of a supreme judge, would be unin¬ 
formed concerning the character of a certain judge charged by 
a few with incompetency. Bow, except by an extended cam¬ 
paign of education costing thousands of dollars, which corpora¬ 
tions and special interests only could afford, could the charac¬ 
ter of a judge be determined? Then what reason is there to 
suppose that the electorate will do better concerning the selec¬ 
tion of the second judge? Bemember that the same power 
which created the bad judge in the first place is creating the 
next one. Is that body, to which the demagogues subtly refer 
as the ^‘people’’ infallible? 

Consider the question of corruption charged against a judge. 
Is it justice to have his honesty determined upon by popular 
vote after a heated campaign in which stump orators and dem¬ 
agogues have vied with one another in presenting trumped-up 
charges and exaggerated statements villifying the character 
of a judge? How will the judge single-handedly combat these 
agitators and attend to his judicial duties at the same time? 

The indignity and disresjiect to which our judges will be Jiiade 
subject under the threat and operation of the recall will v7ork 
disaster on the personnel of our judiciary. What successful 
lai;\"yer will leave his practice to hold an uncertain and dis¬ 
credited office? What class of judges will such a state of affairs 
tend to produce? Does it stand to reason that the threat of 
recall, hanging over the head of a judge like a sword of Damo¬ 
cles, will make him a better judge? Will men who possess 
true judicial caliber consent to being coddled into accepting 
an office whose tenure is controlled by fluctuating popular ma¬ 
jorities? 


18 


JUDlCIATiy MCiJ^T BE INDEPENDENT 

Haniiltoii, Madison and Marslia]] said that tho coiripiere 
independence of the judiciary was absolutely essential under 
our form of government. In order to pertoi'in its iiigh func¬ 
tion the judiciary must be independent of the legislative power 
no less than of the power of popular majorities. To fuse the 
judicial and legislative functions is to destroy that separate¬ 
ness which Avas intended to exist betAveen the three depart¬ 
ments of government. To make the judge the tool of temporary 
popular majority, compelling him upon threat of recall to obey 
every changing whim and caprice of public oj^inion, is to make 
him, not the exponent of Avhat the laAv is, but of AA^hat the peo¬ 
ple, for the time being, think they Avant it to be. Under such a 
regime Ave shall have a gwernment of men, not a gwernment of 
laAA^s. 

But the insidious and undermining influence of the "ecall 
does not end here. The duty of the judiciary is to protect 
constitutional safeguards, to secure the rights of individuals 
and minorities, hoAvever small. ±\ judge, held in jeopardy by 
threat of ai-bitrary recall, cannot by the very nature of things 
exercise this function independently, fearlessly or impartially. 
He has got to look to the Avishes of the faction Avliich has made 
possible his election. If he disregards their mandates, this 
faction Avill, by employing the recall, proceed to replace the 
inflexible judge AAutli a pliant reed, de])endent upon their com¬ 
mands. When such a state of affairs comes to exist, as it un- 
aAmidably must under the recall, the people of Minnesota, must 
expect the niilliflcation of constitutional protection through 
the destruction of the independence of the judiciary. 

By constitutional safeguards Ave mean those liberties and 
established rights Avhich inhere in free government. The first 
ten Amendments embody these lights almost in their entirety. 
They are Avritten into the fundamental laAV of our land and 
are the distinguishing feature of our constitution Avritten as 
they are in the shape of definite constitutional provisions insur¬ 
ing to every citizen the right of life, liberty, property and 
human happiness. These limitations upon the governing poAver 
have made our government the scientific basis of the constitu¬ 
tions of the Avorld. These are the limitations Avhich by reason 
of the recall agitation are being seriously threatened at the 
present time. The citizen Avho really understands that the 
adoption of the recall Avill directly, through the destruction of 
the independence of the judiciary, and indirectly, through the 


19 


nullification of constitutional safeguards, work against the 
basic principles of true government, will never be found plac¬ 
ing his mark of approval opposite the proposed amendment. 


THOROUGHLY IMPRACTICABLE 

But there are further objections to this boasted cure-all, the 
popular recall. Its impracticability alone must prohibit it 
from ever becoming a workable instrument. The expense of 
getting petitions signed, of conducting a campaign of educa¬ 
tion regarding the qualifications of a certain judge and the out¬ 
lay connected with recall election must necessarily be immod¬ 
erately great, especially so in the case of a supreme court judge. 
T^he middle class, w'hich usually bears the brunt of such bur¬ 
dens, will not be able to exercise the use of the recall. Bather, 
you will find it will be the rich, influential litigants defeated 
in court trials, corporation-owned and controlled presses, spe¬ 
cial privilege interests and other self-serving elements, that 
will have the means and the influences to bring about the recall 
of a judge who dares to act without consulting their wishes. 

If there ever was such a thing as bribery and corruption we 
shall have it in the judiciary if the tenure of that body is to be 
controlled by those who are financially the most powerful and 
influential. A campaign of slander, misrepresentation and viJ- 
lification can be carried against a judge by powerful interests 
and the retention of a fair, impartial judge will be next to an 
impossibility. The recall is not an instrument designed to be 
employed by the forces of democracy. It is, rather, an instru¬ 
ment whereby plutocracy and wealth, hiding behind the pro¬ 
tection of the recall, can perpetrate crimes darker than any 
which ever stained the history of the judiciary. 


CONCIiUSION 

Voters of Minnesota, this is the recall and such its meaning. 
If you vote for the recall amendment you have got to take ail 
that goes with it. Bemember that the recall is not a panacea 
for the technical imperfection in our judiciary. Bemember 
that it means the overthrowing of representative government 
and the substitution for it of direct and unlimited democracy. 
Bemember that it means the destruction of the independence of 
our judiciary and of the judicial department itself. Bemember 
that, through the destruction of the independence of the judi- 


20 


ciary, it means the nullification of constitutional safeguards, 
thus establishing socialism, menacing every right of property 
and of liberty which you now cherish, menacing even your very 
existence. Eemeinber that it is impracticable and unworlv- 
able, a two-edged sword, destructive of the judiciary and de¬ 
structive of the interests of the people. Remember that it is 
fundamentally and totally reactionary, subversive of all true 
government and repugnant to all the fundamental principles 
for which civilized man since the signing of Magna Charta has 
fought. 

Arthur O. Lee. 


21 


Extract from Annual Address of President Wm. H. Taft of 
the American Bar Association, delivered at Washington, D. C., 
October 20, 1914. 

^This Association four years ago appointed a Special Com¬ 
mittee to Oppose the Judicial Recall, and that committee has 
done great work. Its present chairman, Mr. Rome G. Brown, 
of the Minneapolis Bar, has delivered effective addresses to 
many State Bar Assocdations Ihroughoiit the country, and has 
encouraged legislative o])])osition in many states to the em¬ 
bodiment of tliese heresies in statutes. The report of the com¬ 
mittee shows that thei*e has been a distinct falling off in the 
support of these fundamentally uuAvise and dangerous propos¬ 
als. They Avere incorporated in the platform of the Progressive 
party, and the leader of that party at one time felt called upon 
to declare that they Avere the rock upon Avhich it was founded 
and Avere essential to the efficacy of every other one of the re¬ 
forms Avliich the platform of the i>arty set forth and advocated. 
It would appear that the party Avhicli once fathered these pro 
posals noAv finds that instead of being the rock on Avhich it is 
founded, it is, to change the metaphor, the rock on AAffiich it 
founders. Certainly it seems Avise to its leaders to ignore this 
part of their original propaganda, an indication that it has 
(‘eased to be Amt e-getting and indeed has become a burden to any 
party that assumes to press it. I do not nu'an to say that the 
denunciation of the courts has not continued to be a favorite 
theme in the mouths of a certain class of orators, but the origi¬ 
nators of this preposterous nostrum of judicial recall are en¬ 
gaged in scaling it down into changes in our judicial system 
Avhich are not to be commended but Avhich are much less radical 
and objectionable. In New York the Progressive party has 
abandoned its platform altogether and confined its appeal to 
the voters to a declaration against boss rule; while its candi¬ 
date for Governor has rejected the recall. In Massachusetts, 
too, such methods of reforming the judiciary are not made the 
subject of discussion at all by the Progressive party, and its 
eAudent effort is to induce the voters to ignore them. The de¬ 
mon Rum has there been substituted as the object of attack, in¬ 
stead of ^^the divine right of fossilized judges,” and of this 
change, whatever our views of prohibition, Ave can express our 
unqualified approval. The only state in Avhich the recall of 
judicial decisions has been adopted is the State of Colorado, 
and the present condition of that state with reference to gov¬ 
ernmental authority is not such as to commend those Avffio have 
formulated its policies in the recent past.” 


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